PEOPLE STATE NEW YORK v. NATHAN WHEATMAN (11/06/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
1969.NY.43438 <http://www.versuslaw.com>; 304 N.Y.S.2d 904; 33 A.D.2d 67
November 6, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.NATHAN WHEATMAN, JERRY JEROME, SAMUEL SPECTOR, JERED CONTRACTING CORP. AND DUNRITE PAINTING CO., INC., APPELLANTS. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. ARNOLD MARCUS AND MARCUS DECORATING CO., INC., APPELLANTS
Appeals from judgments of the Supreme Court (Irwin D. Davidson, J.), rendered May 24, 1968 and June 20, 1968, in New York County upon a verdict, convicting defendants, after a joint trial, of the crimes of conspiracy, conspiracy to prevent competitive bidding on public contracts, and bribery.
Irvin Anolik for Nathan Wheatman, appellant.
Irving Anolik and Rudolph Ebenfeld of counsel for Jerry Jerome and Jered Contracting Corp., appellants.
Benjamin Shedler of counsel (Allen H. Weiss with him on the brief; Shedler & Weiss, attorneys), for Samuel Spector and Dunrite Painting Co. Inc., appellants.
Frederick H. Block for Arnold Marcus and Marcus Decorating Co. Inc., appellants.
Joseph A. Phillips of counsel (Michael R. Juviler and Alan Scribner with him on the brief; Frank S. Hogan, District Attorney), for respondent.
Eager, J. P., Capozzoli and Nunez, JJ., concur in Per Curiam opinion; McNally, J., dissents in opinion in which Tilzer, J., concurs.
Author: Per Curiam

Appeals from judgments of the Supreme Court (Irwin D. Davidson, J.), rendered May 24, 1968 and June 20, 1968, in New York County upon a verdict, convicting defendants, after a joint trial, of the crimes of conspiracy, conspiracy to prevent competitive bidding on public contracts, and bribery.

Judgments entered May 24, 1968 and June 20, 1968 convicting defendants-appellants of conspiracy and bribery reversed on the law, and a new trial ordered. The search warrant issued June 15, 1965 is vacated and the evidence seized upon its execution is suppressed.

Defendants' motion to vacate the search warrant and to suppress the records seized in the execution thereof predicated upon the insufficiency of the affidavit of Assistant District Attorney Joseph A. Phillips should have been granted. The documents seized and introduced at the trial were vital to the People's case for, except as to defendant Wheatman, they provided the necessary corroboration of the incriminating testimony given by coconspirators which, standing alone, would be insufficient to convict.

The Phillips' affidavit recites that there was a bid-rigging arrangement on work for the New York City Housing Authority among a number of painting contractors, that in connection therewith the contractors obtained estimates of the man-days that it should take to paint certain portions of Authority projects; that these estimates were solely for the internal use of the Authority and that parties to the bid-rigging agreement obtained copies thereof and utilized them to submit false bids to the Authority. All of the foregoing is said to have been testified to by a number of witnesses before the Grand Jury, but the affidavit is barren of any identification of the alleged witnesses, of the substance of the testimony claimed as support for affiant's conclusion and of anything to indicate the basis of the witnesses' testimony or to demonstrate the reliability of such testimony. The affidavit concludes: "That based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that the estimate information has been wrongfully obtained from the Housing Authority, that it has been utilized by the parties to the agreement to submit false bids to the Housing Authority and that copies of the estimate information may be found in the files of each of the parties to the corrupt agreement at the addresses set forth above." Affiant's conclusion as to what witnesses said before the Grand Jury, without setting forth any of the testimony on which his conclusion rests, is not sufficient. Where hearsay is relied on, it must be shown to come from a reliable source and must in and of itself be able to justify a finding of probable cause. (People v. Hendricks, 25 N.Y.2d 129; People v. Malinsky, 15 N.Y.2d 86, 93, 94; People v. McCall, 17 N.Y.2d 152.) He completely fails to state the basis, nature or content of his claimed "personal knowledge". The affidavit at bar fails to meet the two-pronged test laid down in Aguilar v. Texas (378 U.S. 108) and more recently reaffirmed in Spinelli v. United States (393 U.S. 410) and most recently reaffirmed by the Court of Appeals in People v. Hendricks (25 N.Y.2d 129, supra). In short that test requires that the affidavit show (1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability of credibility to allow the search of the premises or person in question.

While we should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a common sense manner (United States v. Ventresca, 380 U.S. 102), the law is clear that the Magistrate must be informed of the underlying circumstances which support the conclusion and belief of the affiant that his informant was credible and his information reliable (People v. Hendricks, 25 N.Y.2d, at p. 139).

In view of our ruling on the invalidity of the search warrant, we did not reach and, therefore, did not consider the other points raised by appellants. For the foregoing reasons, the judgments of conviction should be reversed, on the law, and a new trial ordered as to each appellant.

Disposition

Judgment reversed, on the law, and a new trial ordered as to each appellant. The search warrant issued June 15, 1965, is vacated and the evidence seized upon its execution is suppressed.

McNally, J. (dissenting).

I dissent and vote to affirm.

The motion to vacate the search warrant is grounded solely on lack of probable cause. No issue of fact is involved. Hence, no hearing was necessary. (See Code Crim. Pro., § 813-c.)

The affidavit in support of the warrant which has been declared ...

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